Separated from us by the barrier of a century. Inaugurator of a fully mechanised modernity. Eye-opener for the birth of a new, horrified, global society. Premonition of a future to come. This is the Great War. As one supremely tragic bookend to the ‘long’ nineteenth century, the ‘Great War’ is offered to international lawyers as a turning point — as a hinge between the imperial and the modern (see Berman 1999). The extended moment of memorialisation in which we find ourselves today presents, in our view, a critical opportunity for interrupting the sensibility of this bounded past.
‘Progress’ is the lens through which, conventionally, this imperial past comes to be known as past, and our present becomes modern. Yet, we know that in making sense of the past this conventional account of the forwards march of modernity — and international law — appropriates and organises particular materials, deploying an assemblage of sources that evidence the meaning of ‘then’.
A particular archive of international law is thus constructed, mobilised and sedimented, setting in place — as with all assemblages of knowledge – a particular order of things (Foucault 1973). How might we then disrupt that process of sense-making which, confronted with the radical inaccessibility of the past, seeks to make real a particular ‘then’ through the memorialisation and remembrance of some things, and, of course, the silencing and obliviation of others. Most importantly, perhaps, what are the stakes in questioning this conventional archive of international law?
Rethinking the Archive
The archive is a place populated by historians, anthropologists, and legal scholars. Yet, unlike their colleagues, legal scholars have adopted an oddly uncritical attitude to the question of law’s own disciplinary archive (Mawani 2012). As Foucault observed, the archive is ‘first the law of what can be said, the system that governs the appearance of statements as unique events’ (Foucault 1972, 128-129). The archive represents the material and ideological outcome of a series of human decisions and accidents about what to record, what to keep, and what to discard. Given its constructed and iterative birth, the archive therefore cannot stand in for a truthful or accurate account of ‘how things were’ (were such truth or accuracy to be desired).
Like the historian, the judge and the lawyer go about their work by organising words and objects to represent rules and events. Law generates documents, selects from them and other domains of knowledge, and decides on the relevance of its selection. Thus, the law is not in, alongside, or drawn from the archive — it is the archive (Mawani 2012). Approaching international law as an archive offers a perspective from which to view the topography that has resulted from the seismic relationship between law, time and fantasies of the ‘global’. The contents of the archive exist by their nature both in the past and in the present. They ‘come from’ the past, but they are noticed because of their (perceived) relevance to and significance for the present. This is only the ordinary metaphysics of history. But it is even more perplexing in the case of international law, which has spent its brief (disciplinary) life announcing that the past is behind us once and for all.
Declarations of ‘never again’, assertions that human rights inaugurated a new dawn for humanity, models of development that propel the human race along a path to ‘maturity’, again and again, international law relentlessly declares its novelty. So, with this in mind, we ask: how can we reimagine international law’s archive?
Placing the Artefacts of International Law’s Archive
In the contributions which follow we trace a few of the various ways in which an alternative, artefactual rendering of international law’s archive of the First World War can make it possible to disrupt the conventional manner in which the past is channelled through our senses. We take up the invitation offered by Christopher Tomlins and John Comaroff to think through the implications of a method that does not situate law in its context, as in the ‘law and…’ tradition, but instead uses ‘law as… [artefact]’ to confront the present and ‘reject the sequestration of the past and the various histories that result from it’ (Tomlins and Comaroff 2011).
The artefacts we present below interrupt the meaning of the First World War for conventional international law by forcing us to supplement our collective grief and desire for historical ‘closure’ with an awareness of the complexity of the relationship between past and present that we encounter in the archive of/as international law.
These five artefacts (the ANZAC Memorial to the Desert Mounted Corps; Joe Sacco’s The Great War; a 1917 petition by the Six Nations to their ally, King Edward V; Giacomo Balla’s Anti-neutral Suit; and a 1916 International Workers of the World anti-conscription poster from Australia) reflect some of the deeply buried and yet persistent preoccupations of that archive with violence, spatiality, indigeneity, and class. As material objects, they underscore its physicality, indicating that its messages are often to be read in a space beyond the words or texts, as interpreted by its guardians and archons (Derrida, 1996). Interpreted through such artefacts, international law’s archive becomes a shifting, generative site in which the ‘refuse’ of the so-called past, constellated afresh (again and again), can be heralded as speaking the law (Benjamin, 1999).
The five artefacts will be posted tomorrow….
This post represents a first step towards a much fuller examination of these artefacts and their methodological implications for our thinking about the First World War and about the politics of international legal methodology more generally. We would like to express our gratitude to the Institute for Global Law and Policy, Harvard Law School http://www.harvardiglp.org/ , for its support for the project in its initial stages and — in advance — to the Law and Society Association http://www.lawandsociety.org / (at whose Annual Meeting in Seattle 2015 our papers will be presented as part of the International Law and Politics Collaborative Research Network) and to Kent Law School’s Social Critiques of Law research centre http://www.kent.ac.uk/law/research/Centres/ (which is hosting a workshop for the project in late 2015). This First World War project is the first methodological experiment to be conducted by the History, Anthropology and the Archive of International Law (HAAIL) project. Its members are Madelaine Chiam, PhD Candidate at Melbourne Law School; Luis Eslava, Lecturer in Law at Kent Law School, Senior Fellow at Melbourne Law School and International Professor at Universidad Externado de Colombia; Genevieve R. Painter, PhD Candidate at UC Berkeley; Rose Parfitt, McKenzie Postdoctoral Research Fellow at Melbourne Law School; and Charlotte Peevers, Lecturer in Law at the University of Technology, Sydney.
—Balla, G. ‘Il manifesto del vestito antineutrale’ Volantino della Direzione del Movimento Futurista, Milano, 11 Sett. 1914, repro. and trans. in Rainey, L. et al (eds) Futurism: An Anthology (New Haven & London: Yale University Press, 2009): 202-04.
—Benjamin, W. The Arcades Project, trans. H. Eiland & K. McLaughlin (Cambridge MA., & London, Belknap Press, 1999).
—Berman, Nathaniel. ‘In the Wake of Empire. 14 American University International Law Review (1999): 1521-69.
—Derrida, J. Archive Fever: A Freudian Impression, trans. Eric Prenowitz (Chicago: Chicago University Press, 1996)
—Foucault M. The Archaeology of Knowledge and the Discourse of Language (New York: Pantheon, 1972).
—Foucault M. The Order of Things: an Archaeology of the Human Sciences (New York : Vintage Books, 1973).
—Mawani, R. ‘Law’s Archive’ Annual Review of Law and Social Science (2012): 337-365.
—Tomlins, C. & J. Comaroff, ‘Law As…: Theory and Practice in Legal History’ 1 UC Irvine Law Review (2011): 1039-79.